Anti-Defection Law

Context:

The Leader of Opposition in the Goa Legislative Assembly is set to move a private member’s resolution to recommend to the Central government to address the various issues associated with the anti-defection law.

About Anti-Defection Law:

• The 52nd Amendment Act of 1985 provided for the disqualification of the members of Parliament and the state legislatures on the ground of defection from one political party to another.
• For this purpose, it made changes in four Articles of the Constitution and added a new Schedule (the Tenth Schedule) to the Constitution.
• This act is often referred to as the ‘anti-defection law’. Later, the 91st Amendment Act of 2003 made one change in the provisions of the Tenth Schedule.
• It omitted an exception provision i.e., disqualification on ground of defection not to apply in case of split.

PROVISIONS OF THE ACT

The Tenth Schedule contains the following provisions with respect to the disqualification of members of Parliament and the state legislatures on the ground of defection:

• Disqualification
• Members of Political Parties:

 A member of a House belonging to any political party becomes disqualified for being a member of the House,

1. if he voluntarily gives up his membership of such political party; or
2. if he votes or abstains from voting in such House contrary to any direction issued by his political party without obtaining prior permission of such party and such act has not been condoned by the party within 15 days.

From the above provision it is clear that a member elected on a party ticket should continue in the party and obey the party directions.

• Independent Members:

An independent member of a House (elected without being set up as a candidate by any political party) becomes disqualified to remain a member of the House if he joins any political party after such election.

• Nominated Members:

A nominated member of a House becomes disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat in the House. This means that he may join any political party within six months of taking his seat in the House without inviting this disqualification.

• Exceptions

The above disqualification on the ground of defection does not apply in the following two cases:

• If a member goes out of his party as a result of a merger of the party with another party. A merger takes place when two thirds of the members of the party have agreed to such merger.
• If a member, after being elected as the presiding officer of the House, voluntarily gives up the membership of his party or rejoins it after he ceases to hold that office. This exemption has been provided in view of the dignity and impartiality of this office.

It must be noted here that the provision of the Tenth Schedule pertaining to exemption from disqualification in case of split by one-third members of legislature party has been deleted by the 91st Amendment Act of 2003. It means that the defectors have no more protection on grounds of splits.

• Deciding Authority

Any question regarding disqualification arising out of defection is to be decided by the presiding officer of the House.

• Rule-Making Power

The presiding officer of a House is empowered to make rules to give effect to the provisions of the Tenth Schedule. All such rules must be placed before the House for 30 days. The House may approve or modify or disapprove them. Further, he may direct that any willful contravention by any member of such rules may be dealt with in the same manner as a breach of privilege of the House. According to the rules made so, the presiding officer can take up a defection case only when he receives a complaint from a member of the House. Before taking the final decision, he must give the member (against whom the complaint has been made) a chance to submit his explanation. He may also refer the matter to the committee of privileges for inquiry. Hence, defection has no immediate and automatic effect.

Advantages

The following can be cited as the advantages of the anti-defection law:

1. It provides for greater stability in the body politic by checking the propensity of legislators to change parties.
2. It facilitates democratic realignment of parties in the legislature by way of merger of parties.
3. It reduces corruption at the political level as well as non developmental expenditure incurred on irregular elections.
4. It gives, for the first time, a clear-cut constitutional recognition to the existence of political parties.

Issues Related to Anti-Defection Law:

• Undermining Representative Democracy: After enactment of the Anti-defection law, the MP or MLA has to follow the party’s direction blindly.
  • This leaves them with no freedom to vote their judgment on any issue and undermines representative democracy.
• Undermining Legislatures: The core role of an elected MLA or MP is to examine and decide on a policy, bills, and budgets.
  • Instead, the MP becomes just another number to be tallied by the party on any vote that it supports or opposes.
• Undermining Parliamentary Democracy: In the parliamentary form, the government is accountable daily through questions and motions and can be removed any time it loses the support of the majority of members of the Lok Sabha.
  • Due to Anti-Defection law, this chain of accountability has been broken by making legislators accountable primarily to the political party.
  • Thus, anti-defection law is acting against the concept of parliamentary democracy.
• Controversial Role of Speaker: In many instances, the Speaker (usually from the ruling party) has delayed deciding on the disqualification.
  • The Supreme Court has tried to plug this by ruling that the Speaker has to decide the case in three months, but it is not clear what would happen if a Speaker does not do so.
• No Recognition of Split: Due to the 91^st constitutional amendment 2004, the anti-defection law created an exception for anti-defection ruling.
  • According to this, if two-thirds of the strength of a party should agree for a ‘merger’ then it will not be counted as a defection.
  • However, the amendment does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’.

Way Forward

• Strengthening Intra-Party Democracy: If government stability is an issue due to people defecting from their parties, the answer is for parties to strengthen their internal part of democracy.
• Regulating Political Parties: There is an ardent need for legislation that governs political parties in India. Such a law should bring political parties under RTI, strengthen intra-party democracy, etc.
• Relieving Chairman/Speaker From Adjudicating Powers: Chairman/Speaker of the house, being the final authority in terms of defection, affects the doctrine of separation of powers.
  • In this context, transferring this power to higher judiciary or to Election Commission (recommneded by 2^nd ARC report) may curb the menace of defection.
• Restricting the Scope of Anti-defection Law: In order to shield the detrimental effect of the anti-defection law on representative democracy, the scope of the law can be restricted to only those laws, where the defeat of government can lead to loss of confidence.

Case related to this article

• Kihoto Hollohan v. Zachilhu, (1993).

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